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Yourself from Malpractice Claims
Unbundling Legal Services: Protecting Yourself from Malpractice Claims

Unbundling Legal Services: Protecting
Yourself from Malpractice Claims

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This article is the second installment of a three part series discussing the topic of unbundling legal services. The first article titled “The Opportunity Of Unbundling  Legal Services To Your Practice” appeared in an earlier edition of Legal Ink Magazine. This article will focus on the ethical rules you have to comply with to avoid claims of malpractice and to stay out of trouble with clients for whom you provide limited legal services.

For decades, the full service representation model was the exclusive way that lawyers could offer legal services to any client, whether the client was an individual consumer or a Fortune 500 corporation.

Underlying the full service approach is a business model supported by the Model Rules of Professional Conduct and the version of these rules implemented by all of the states. The full service approach assumes that every legal problem is unique, that the lawyer explores every fact and legal issue, and doing whatever is necessary to solve the client’s problem. The only rational billing method for this practice is billing by the hour. The result is the creation of a high priced product that may serve the needs of Fortune 500 corporations, but is much too expensive for the average consumer or small business.

Now comes the concept of “unbundled legal services” or “limited legal services.” The “limited legal service” model enables the lawyers to provide just the service that the client needs at a fee that the client can afford. Supported by technology, appropriate delegation of tasks to paralegals, work flow analysis technology, it is possible to shift from the “full service delivery model” to a fixed fee productized legal service that consumers want for certain types of transactions.

Stephanie Kimbro defines the concept of legal service delivery in her book on this subject:

“Unbundling legal services, also termed limited scope services, a la carte legal services, discrete task representation or disaggregated legal services, is a form of delivering legal services where the lawyer breaks down the tasks associated with a legal matter and only provides representation to the client pertaining to a clearly defined portion of the client’s legal needs. The client accepts the responsibility for doing the footwork for the remainder of their legal matter until reaching the desired resolution. “

The authorization for providing unbundled legal services to clients is based on the American Bar Association 2002 revision of ABA Model Rule 1.2(c) entitled “Scope of Representation” that states:

“1.2 (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

This rule has either been adopted or modified by forty-two states and the remaining states are considering modifying their rules to confirm to the ABA revision of 1.2 (c)… We predict that within a relatively short while, all of the states will recognize limited legal services as an appropriate and ethical form of legal service delivery. You can check your state’s rules quickly by going to the Web Site of the ABA Standing Committee on the Delivery of Legal Services which has created a dedicated resource center to this this subject. In August, 2014, the Standing Committee released a White Paper titled: “An Analysis of Rules that Enable Lawyers to Represent Self-Represented Litigants”, which is an up-to-date analysis of the state rules that govern the delivery of unbundled legal services.

The operative principles are contained in the original revision of 1.2 (c): The limited legal service must be reasonable under the circumstances and the client must give informed consent.

“Reasonable under the circumstances” depends on the transaction, the client, and often the complexity of the transaction. While a criminal defense case would usually not lend itself to being “unbundled,” a self-represented litigant pursuing a no-fault divorce would. Similarly, an elderly client might not be able to do the tasks required of the client in an “unbundled” transaction. Or a client who is language challenged might not follow written instructions on how to conduct themselves in a hearing.”

“Informed consent” means that the lawyer must explain to the client the scope of the representation and the tasks that the client is going to do, and the tasks that the lawyer is going to do and not do. The costs to the client are also made clear for each task that the lawyers does at the outset of the engagement.

Online clients will normally accept a “click-wrap” retainer agreement that explains the division of tasks, and also explain when the attorney/client relationship is created and when it ends. In-office clients will sign off on a similar limited retainer agreement. A sample limited retainer agreements can be found here.

The concept of “unbundling legal services” has become more popular as law firms have moved online, although online delivery, as distinguished from serving clients within an office setting, has its own set of complications. Communication by text or email may be a disadvantage to some challenged clients requiring the lawyer to use communication by telephone or Skype. The technology platform that the lawyer chooses to support online legal service may have an impact on the quality of the client experience and the client’s understanding of what he or she is responsible for and what tasks the lawyer is undertaking. The guiding principle is to make sure that the client is fully informed about what tasks they are responsible for, when they must do these tasks, and what tasks the lawyer will do for the client. “Informed consent” means what it says: the client should have a full and clear understanding the scope of the presentation.

Finally, because the rules in this area are changing, you must check with your state bar for any additional requirements that apply to offering “unbundled legal services.” You may be required to make additional disclosures on your website which describes the nature of your service offerings, contact information, and other disclosures that provide clarity to prospective clients about the nature of your practice.

You are also responsible for referring clients to other attorneys if the client requires full service representation and you are unable to provide that level of service. Thus, in my limited scope practice in the state of Maryland, I provide legal forms bundled with legal advice for a fixed fee to pro se litigants in divorce matters. I do not provide full service representation for clients. Sometimes I start a matter and it changes from simply providing limited legal services to requiring full service representation. In that case, I refer the case to a network of colleagues who provide full service representation in divorce matters.

On the other hand, if I did provide full service representation divorce matters, the offering of limited legal services can be a good marketing strategy for generating work for the full service side of my law firm. About 1 out 12 divorce cases that I handle converts from requiring limited legal services to requiring full service representation.

I have not been deterred from offering “unbundled legal services” because of the rules of professional responsibility. A common sense approach suggests that with due care you can include “unbundled” legal service in your “product mix,” expanding your market by offering additional services without compromising the firm’s full service approach. Compliance with ethical rules can be easily accomplished by creating a set of best practices that everyone in the firm engaged in the delivery of legal services complies with.

 

About the Author

Richard-Granat

 

 

 

 

Richard S. Granat is Co-Chair or the eLawyering Task Force, Founder and CEO of DirectLaw and Co-Director, Center for Law Practice Technology, Florida Coastal School of LawHe was also named one of 50 Legal Rebels by the American Bar Association Journal in 2009; awarded the ABA Louis M Brown Lifetime Achievement Award for Legal Access in 2010, the ABA Keane Award for Excellence in eLawyering in 2013, and also named a FastCase50 Winner in 2013.

 

Richard Granat
Richard Granat

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